Two products sharing many small details may still not infringe a design — and vice versa. This article explains the overall-comparison standard Vietnamese courts apply, so a company can self-assess a case before suing.
The court’s standard: overall impression
Under the IP Law 50/2005/QH11 and judicial practice, industrial design infringement is assessed by the overall impression the product creates on an informed average consumer in the relevant field, not by tallying matching details. The court compares the accused design with the protected design as shown in the certificate’s photos or drawings; features driving the different overall impression carry great weight, while details dictated by technical function or commonplace in the trade carry little.
Overall first, details second — yet details decide
The correct analytical order is to first identify the protected design’s overall-impression features, then map each feature onto the accused product to see whether the differences change the general impression. A product copying the signature features while altering a few minor details still risks an infringement finding; a product wholly different in overall composition usually does not infringe despite sharing functional details. Self-assessment should start from one question: would an average buyer placing both products side by side confuse their design origin.
Is expert examination needed before suing
IP expert examination is not a mandatory precondition to sue, but an examination conclusion is specialist evidence that courts and administrative enforcement bodies rely on heavily in technical cases. For designs, examination systematises the overall comparison with neutral expertise. In practice: a clear case can be filed at once with a request for court-appointed examination during proceedings; a borderline case should be examined first to learn your position, avoiding a lost suit with court fees and counterclaim risk.
How damages are computed
Damages in a design case follow the IP Law’s bases: the owner’s actual material loss, the profit the infringer gained, or a hypothetical royalty where the other bases cannot be computed; plus moral damages within statutory limits where grounded, and reasonable prevention and remedy costs including lawyer fees. The owner must prove loss with books, sales data and market evidence; building the damages file from the start matters as much as proving the infringement itself.
Frequently asked questions
By what criteria does the court assess design infringement?
By overall impression on an informed average consumer: identify the protected design’s impression-driving features, then map them onto the accused product, rather than tallying matching details.
Is the comparison overall or detail by detail?
Overall comparison is the deciding standard; details are weighed by their role in the overall impression — functional or commonplace details count little, signature features count heavily.
Is an IP appraisal needed before suing?
Not mandatory to sue, but an examination conclusion is specialist evidence courts rely on heavily; borderline cases should be examined first to gauge position, clear cases can seek court-appointed examination in the proceedings.
How is compensation for design infringement calculated?
By the owner’s actual material loss, or the infringer’s gained profit, or a hypothetical royalty under the IP Law, plus moral damages within limits and reasonable costs including lawyer fees.
This article has been quality-reviewed by the FLAW AI Legal Council
